Gov. Greg Abbott at the Texas State Prayer Breakfast in Austin on May 4, 2015.
Bob Daemmrich

In a lengthy memo defending his line-item vetoes in the new state budget, aides to Gov. Greg Abbott decry a legislative agency’s use of “magic words” to try to block him and insist its arguments threaten the constitutional separation of powers.

Abbott vetoed $227.6 million from the $209.4 billion two-year state budget. The Legislative Budget Board challenged most of those changes, contending that the governor is limited to striking “items of appropriation” and not descriptive sections of the budget that direct agencies’ spending without actually appropriating money.

In a 29-page memo sent this week to Comptroller Glenn Hegar (appendices bring it to 62 pages), Abbott’s aides attempt to answer the LBB’s challenge, arguing that the Legislature is trying to protect its spending plans from the governor by using “magic words” to limit his powers. By listing specific amounts in descriptive “riders” and as “informational items,” they argue, the budget writers are trying to keep the governor out of the detailed sections of the budget.

"According to all of the relevant legal authorities — including the Texas Supreme Court’s landmark decision in Jessen v. Bullock — the Governor may veto any language in an appropriation bill that (1) sets aside a sum of money (2) for a particular purpose," they wrote. "Each of Governor Abbott’s line-item vetoes of the 84th Legislature’s General Appropriations Act easily satisfies that simple test."

The memo says Abbott’s vetoes fall within his legal reach, that case law proves it, that the LBB’s arguments are not based in law, and that to rule otherwise would threaten the separation of powers between the executive and legislative branches described in the U.S. Constitution.

“In the LBB staff’s view, the only relevant question is whether legislative budget writers intended for an item to be veto-eligible,” the memo reads. “Under that view, the LBB staff — not the Texas Constitution — unilaterally determine which budget items are eligible for veto. That gets the law exactly backwards. The Texas Constitution — not the LBB staff — determines the scope of the Governor’s veto power.”

The initial memo from LBB director Ursula Parks to Hegar sparked a row among some of the state’s top officials. One of the LBB’s co-chairs, Lt. Gov. Dan Patrick, said in news releases that he disagreed with her argument — so much so that he wanted a special committee to review the LBB and other legislative agencies. Email traffic between his office, the LBB and the House speaker’s office made it clear that top Patrick aides had seen the LBB document and approved sending it to Hegar.

Abbott’s office reacted even more strongly, blaming “unelected bureaucrats” for interfering with the governor’s constitutional power to strike items of spending from the budget.

Emails between the legislative leaders mentioned another memo — this one from the Texas Legislative Council, a legislative agency that acts as an in-house law firm — being drafted for the comptroller. That memo, if it was completed, has not been made public.

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